The other day I happened upon a 2008 paper by Large, Nielssen, Ryan, and Hayes, entitled “The danger of dangerousness: why we must remove the dangerousness criterion from our mental health acts.” (J Med Ethics 2008;34:877-881). I won’t link to it, as it’s not freely available. However, I will summarise the main arguments as best I can, and then discuss both my agreement and concerns.

The authors’ point is that dangerousness is not a logical, useful, or ethically-sound, criterion on which to base involuntary psychiatric treatment. They then suggest a person’s capacity to consent as a better replacement.

They start with some historical background on the Obligatory Dangerousness Criterion (i.e. not simply that dangerousness can justify involuntary detention and treatment, but that only dangerousness (to self or others, generally) can do so). They then present arguments against the validity and value of an ODC: that the reasoning behind it is flawed, and its effects unhelpful and possibly even harmful.

First they argue that an ODC is unnecessary as a justification for overriding a mentally ill person’s autonomy, because their illness has already robbed them of their autonomy. This is the point at which I began annotating my PDF… it seems to me to be a rather sweeping generalisation to write, as they do:

“In most cases mentally ill people who refuse treatment do so because their mental illness has robbed them of their capacity to consent to that treatment.”

O rly? “most cases”? That’s definitely a statement I would have liked to have seen backed up by a slew of references – especially as it forms the basis of their later suggestion.

Anyway…

They go on to make I think more cogent arguments against an ODC. First they draw a comparison with non-psychiatric situations where a person might be unable to consent to treatment, and make the point that dangerousness is not a part of the decision-making about their treatment.

Second (and deserving its own paragraph), they discuss our inability to be clear about dangerousness in any really reliable way. Even using the best available actuarial tools, in controlled research settings, you see unsupportably-large amounts of misclassification of risk (they cite particularly the MacArthur Study of Mental Disorder and Violence, in which – despite a higher baseline prevalence of risk than one would usually be dealing with, which increases one’s positive predictive value – 29% of the study subjects were misclassified).

And that’s the best case scenario. By a long way. Most studies agree that a psychiatrist has no better ability to predict who will or won’t kill themselves or someone else, than flipping a coin.

So, I agree with these authors: that seriously undermines the justification for an ODC.

Next they take on the utility of an ODC. One might argue on utilitarian grounds that if an ODC is useful, then let’s go with it even if it’s not logically or clinically justified. I wouldn’t, but one might…. However, they discuss some evidence showing that the Duration of Untreated Psychosis is longer (by 5 months) in countries with an ODC compared to countries without – and they say that was not able to be explained by clinical characteristics of the patients, or by the funding or delivery of psychiatric services. The longer the DUP, essentially the worse the clinical outcome for the ill person. They then cite studies showing a statistical correlation between longer DUP and greater risk of violence, suggesting (in an indirect manner, it should be said) that the adverse effects of an ODC (assuming that is in fact what is causing the problems) are not just limited to the person themselves, but also may involve harm to others.

So, an ODC doesn’t make sense, and isn’t useful. But no-one wants to return to just locking up psychiatrically ill people because they’re psychiatrically ill, so what do we use instead? These authors suggest an assessment of capacity:

“Mental health acts should be redrafted so that treatment without consent can be provided to a mentally ill person if and only if:
1. It can be reasonably held by an independent authority that the mentally ill person lacks the capacity to consent to the proposed treatment.
2. It can be reasonably held by an independent authority that the mentally ill person will gain substantial benefit from the proposed treatment, or alternatively, if a proxy decision maker believes that the mentally ill person would have consented to the treatment had he or she the calacrity to do so.
3. The treatment is provided in the least restrictive environment practicable.”

They go on to say that such a change in criteria:

“…would return the fulcrum for compulsion to its proper place. That is, that the mentally ill person has, usually by virtue of their illness, lost the capacity to see themselves as ill, and as in need of treatment.”

And that, I have a problem with. While I agree with the argument against an ODC, I have serious reservations about the use of capacity as a replacement. In practice I think it would mean people would be detained simply for refusing treatment – with their lack of capacity to consent to treatment being assumed, tautologically, by virtue of their refusal of treatment.

Taking a step back from the practical reality, this also requires a substantial value judgement about both mental illness and the available treatments, and an assumption that the ill person must necessarily share our adjudged values – or that if they don’t, it must be a reflection of their illness, and warrant involuntary treatment.

I accept that there are established methods for the assessment of capacity, and their (mandatory) use might address my first reservation; however, I’m left with the second, and I’m not sure how to surmount it.

In addition, if we were to allow involuntary treatment of someone who lacks the capacity to consent, then why only in psychiatric illness? Why even specifically in psychiatric illness? Shouldn’t this argument then just represent a call for a “Health Act” allowing involuntary treatment of anyone who lacks capacity to consent to treatment of whatever ailment they have?

Cat … pigeons….

And are we talking passive assent or real informed consent? – And how would we monitor the consent processes in relation to such a “Health Act”?

Sadly, I don’t have any answers. I do think the ODC should go. It’s senseless, and probably either useless or actually harmful. However, I’m unconvinced that capacity to consent is a reasonable replacement, and I can’t think offhand of anything else.

Not an easy thing, figuring out what might constitute a reasonable justification for removing a person’s basic human rights …

Anyway…

In a move akin to the way Pharmac in New Zealand will refuse to subsidise one medication unless the company drops the price on a wholly unrelated product, Nile is withholding support for a piece of Industrial Relations legislation. He is hoping to use his support as leverage to force the NSW State Government to repeal the law establishing ethics classes as an alternative to Scripture classes.

Weasel.

There are many things I would like to say to and about Nile – and I would happily say them to his face. However, Dr Simon Longstaff, executive director of the St James Ethics Centre in an opinion piece in the Sydney Morning Herald, has put everything I would like to say in much more eloquent form, with not one single expletive (which I personally find most impressive, as Fred Nile is most expletogenic).

I particularly liked the way Longstaff elucidated the ethical principles Nile is displaying:

“The ethical lessons on offer are clear: that might is right, that it’s OK to force another man to get his hands dirty, that the ends justify the means. These are old lessons that we, within the community, have been asked to swallow whole – time and time again. Where will it stop? Perhaps now. Perhaps on this issue.”

Fred Nile, go the hell away. Please. Go back into your little desert-bound bronze age immoral closed-minded, blinkered, fear-ridden worldview, and leave the 21st Century the hell alone.

Most especially: leave my kids alone!

“Homicide is justifiable if committed by any person whilst resisting an attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child…”

There’s some disquiet about this. PZ Meyers has blooged it at the above link; Feministing.com takes the view it is clearly aimed at inciting violence against abortion providers, and could even be used to justify murder of pregnant women.

The Bill’s main sponsor, Representative Gensen, has defended his bill, saying it’s clearly not about murder of abortion providers; rather it provides a defence of jusitifiable homicide for (his example) a pregnant woman who is being beaten about the abdomen by an ex-boyfriend not keen on paying child support.

…. mmmmm …. ok.

Even if we accept his stated intent, the ethics of this are debatable. Personally I think it’s wrong (even as he says it’s intended). While the law would be involved, it makes things just that much more Wild West. I’m also concerned that an actual living breathing person (albeit an unpleasant and assaultative one) is seen as having no more importance and right to life than a bag of cells – a potential person.

How far into pregnancy might this apply? What evidence of pregnancy is needed? Before or after the “justifiable homicide”? Is it enough the woman simply thinks she’s pregnant? What if she has a natural miscarriage; is genetic testing going to be required to demonstrate that the bag of cells wasn’t carrying any of the umpteen lethal genes and conditions that lead to spontaneous abortion?

And again: the killing of an actual person is justified for (yes, abominable) acts to abort a bag of cells? Would this then carry the death penalty if the woman didn’t kill her attacker?

Is the actual intent of the attacker relevant? How would that be assessed?

I think this legislation – even accepting Gensen’s stated intent – is far too problematic to be practically useful, and far too ethically dubious to be acceptable.

However, is that really the intent anyway? Given the context that South Dakota (according to PZ at the link above) has the most restrictive abortion laws in the USA, and no doctors who perform abortions (a few fly in from Minnesota), one has to wonder somewhat cynically.

Without more of the Bill to read, I wonder who “such person is”. It might well be that it just refers within this section, to the person committing the homicide, in which case I admit I do find it hard to see how it could be taken to allow anything other than the pregnant women resisting violence against herself. But … I’m not a lawyer. Their minds work in far more devious ways than mine. I don’t know how the case law would pan out; “such person” might get interpreted more widely. I dunno – that’s just wild speculation.

In any case, as I’ve described, there are major problems even taking its intent as stated. It strikes me as a rather terrible Bill, and I do hope it doesn’t get passed.

Addit: I missed this:

Section 2. That § 22-16-35 be amended to read as follows:
22-16-35. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

- which does indeed appear to allow the whacking of an abortion provider. Oh excellent.

I presume this is seen as a good thing, as Anonymous support Wikileaks, and therefore must be right in all things.

However…

It is worth thinking about some of what they do (though admittedly I know very little). Ok, perhaps you can characterise this episode as self-defence of a sort, but what did Anonymous do recently in support of Wikileaks? When Visa and Mastercard decided to stop processing payments to Wikileaks, Anonymous launched attacks against them.

Haha. That’ll show them.

Yeah – it’ll also “show” all those people around the world who want, and even need, to use their Visa or MasterCard. This had the potential to prevent some people from buying food.

Anonymous seem to act like an amoeba: stimulus-response. Visa/MasterCard hurt Wikileaks! We hurt them! No (apparent) thinking through. No discussion of why they have decided it’s ok to potentially cause problems for large numbers of individuals, just a childish “we are legion don’t f*ck with us” slice of dickish bravado.

On a side note, my iPhone wants to correct dickish to Sichuan

Anyway. Clearly these people are wielding a fair bit of power in today’s world. Think Spiderman: with great power comes great responsibility. That entails (among other things) thinking through the consequences of your actions – before acting. Their targets do not exist in a vacuum, and so Anonymous – if they want to claim the moral high ground – have to think more widely.

Maybe they could attend some NSW schools, now that ethics classes are go.

That lack of biblical literacy was made quite plain to me in reading and thinking this week on the Christian myth of the Resurrection (Christopher Hitchens mentions it in God is Not Great – which book is most definitely great). All I knew or thought before was along the lines of: “Jesus really pissed off the Romans, so they crucified him, but then the bible says he rose from the dead so he must be the son of god. The end.” I had never read or thought about the deeper meanings or moral implications.

I didn’t realise that this myth was tied in with the bizarre and offensive notion that we are all, through no fault of our own, born stained by “Original Sin”; that god sent his son, who was really himself, to earth, in order that he be brutally tortured and murdered (sacrificed, though he of course didn’t really die, making it not much of a sacrifice), in order that we be granted absolution for our sins: he would take from us our responsibility for our misdeeds – and the supposed transgression of Adam, who surely was simply following his god-given nature. And bloody hell: we’re all born in sin because the first man yearned after knowledge? To my mind Christianity hit the [FAIL] button right there.

In any case, it’s worth quoting Hitchens’ summary paragraph:

“I am told of a human sacrifice that took place two thousand years ago, without my wishing it and in circumstances so ghastly that, had I been present and in possession of any influence, I would have been duty-bound to try and stop it. In consequence of this murder, my own manifold sins are forgiven me, and I may hope to enjoy everlasting life.”

Hitchens rightly asks how moral such a scenario can be. It is nothing but scapegoating, with Jesus as the goat, and us all as the “fear-ridden peasants of antiquity”. As he points out, a person can perhaps arrange to take the blame and even punishment for another’s misdeeds, but not the responsibility. My deeds are to the credit or debit of no-one’s moral ledger but my own. They can never be taken by another – whether human or godling.

For anyone, or any organisation, to offer to do so is simply immoral. Our deeds are our own, and to believe that a human sacrifice – that incidentally wasn’t a human, nor a sacrifice – millennia ago, in which we had no part, could possibly be seen to alter that is to me quite a revolting concept.

I do not hide from any of my “sins” (“sin” itself being I think a morally useless concept), nor seek to expiate them by thanking god for an ancient murder. Nor do I abase myself before my supposed creator praising or thanking him for the good that I do. I accept both. They are part of who I am and who I become. They are not things to be bought and sold by the blood of man or god.